The Florida legislature is re-thinking the way violent sexual predators should be handled upon their release from prison. The review of the current laws and standards regarding violent sexual predators will occur partly as a result of the recent arrest of Donald Smith out of Jacksonville, Florida. Within three weeks of his release from jail, he is alleged to have abducted, sexually assaulted and strangled an 8 year-old girl. He is awaiting trial on charges of kidnapping, sexual battery on a minor, and murder. Prior to this incident, the Sun Sentinel published a story in August expressing their concern with the significant decrease in sexual offenders that were being confined pursuant to civil commitment under the Jimmy Ryce Act. The Jimmy Ryce Act was created by the Florida legislature in 1995 as a result of the rape and murder of a Miami-Dade County boy by a previously convicted sexual offender.
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Defendants who were previously convicted of sexual motivated criminal offenses are subject to incarceration even after completing their sentences. Civil commitment pursuant to the 1998 Jimmy Ryce Act is a real possibility and allows for an indefinite period of incarceration for offenders labeled as sexual predators too dangerous to re-enter society after serving time in prison. As in criminal matters, defendants that qualify for civil commitment under the act are entitled to be represented by any Miami criminal lawyer of their choice. If a defendant cannot afford to retain a private criminal attorney, the Public Defender's Office will appoint a lawyer to defend the case. Defendants that are found to pose a danger to society upon their release by a jury are sent to the Florida Civil Commitment Center in Arcadia, Florida for an indefinite period of time.
Recently, a Miami-Dade County circuit court judge overruled a jury who decided that civil commitment was not appropriate. Juan Vega served 25 years in prison for several sexually motivated offenses such as sexual battery and kidnapping. Despite serving his sentence, Vega was held until a jury could determine whether or not he posed a threat to society upon being released from prison. Defendants sought to be held beyond their release date are entitled to a jury trial. In Vega's case, the jury decided that he would no longer pose a threat and decided against civil commitment. Vega's case is unusual because the judge disregarded the jury's verdict and decided that civil commitment was appropriate despite the finding.
The judge's ruling has angered criminal defense lawyers in Miami. It is the first time a circuit court judge in the State of Florida ordered civil commitment of a convicted sexual predator over a jury's non-commitment verdict. Now Vega's fate will be determined by an appellate court, most likely the 3rd District Court of Appeals. What caused the judge to overrule the jury? Apparently, the judge relied heavily on psychologists that evaluated Vega and found that there is a significant likelihood that he would re-offend if released from custody. Hundreds of Jimmy Ryce cases have been tried in the state. The majority of offenders have been committed, but some have prevailed. Of those released, some have become productive members of society, while others have re-offended and are spending the rest of their lives in prison.
Pursuant to the Jimmy Ryce Act, there are approximately 569 individuals being held in Arcadia in what is deemed to be civil confinement. Another 97 inmates in the state are awaiting the same type of trial that Vega just sat through. In Jimmy Ryce cases, the Florida Department of Children and Families evaluates all sexual predators set to be released from Florida prisons. If civil commitment is found to be appropriate for a particular defendant, he or she will be transferred to Arcadia, Florida pending a civil trial. After hearing testimony, a jury of six people must decide unanimously whether a defendant is a sexual violent predator who merits civil commitment by clear and convincing evidence for involuntary commitment to occur. If a majority feel commitment is appropriate, a judge will declare a mistrial and prosecutors can re-try the defendant. If the verdict is even or less than half decide that commitment is appropriate, the defendant should be released from custody.
Florida Judge's Decision in Sexual Predator Case Sparks Controversy, Bradenton Herald, March 4, 2013.
The South Florida Internet Crimes Against Children Task Force made several arrests over a three day span. The operation headed by the U.S. Justice Department led to several cyber crimes arrests for charges including traveling to have sex with a minor and possession of child pornography. The sting was led by the Monroe County Sheriff's Office. Two men from Miami-Dade County purportedly traveled to the Keys to meet with what they allegedly believed to be an underage girl. As it turns out, as in so many cases, the underage girl turned out not to be underage, but was in fact an undercover detective. The defendants may hire criminal lawyers from Miami or from Monroe County. If they can not afford to retain a defense attorney, a representative from the Monroe County's Public Defender's Office will be appointed to represent the defendants. Due to a possible conflict of interest, one of the defendants will be represented by the Office of the Regional Counsel.
The South Florida Internet Crimes Against Children Task Force continuously runs operations throughout all of the counties in South Florida. The operations are usually conducted with multiple agencies on the federal, local and state levels. The current operations are targeting adult males who meet girls over the internet and attempt to engage in sex with minors. The other area being targeted is possession of child pornography. Florida Statute 847.0135(4)(1) is titled "Traveling to Meet a Minor". To prove the offense, the prosecution is required to prove that a person traveled or attempted to travel from a location with the purpose of committing certain sexual acts with a child or with a person believed to be a child. The person charged must have also seduced, solicited, lured or enticed a child to engage in unlawful sexual conduct. The crimes in the State of Florida is a second degree felony punishable up to fifteen years in prison.
Child pornography is encompassed by several Florida statutes. Child pornography is covered by Florida Statute 847.002, 847.011, 847.012 and 847.013. The child pornography statutes includes many illegal acts. Selling, lending or giving away, distributing, transmitting child pornography is a crime. Mere possession of child pornography is every bit a serious as the aforementioned offenses. Each of these crimes is a third degree felony punishable up to five years in prison. The important thing to remember when dealing with child pornography is that a defendant is subject to five years in prison for every image that is transmitted or merely possessed. Law enforcement officers typically serve search warrants to confiscate personal computers and laptops in an effort to recover child pornography. Anyone who engages in this conduct must erase images from their computers. To seize computers, investigators are required to obtain a search warrant, unless the computer owner consents to the search. Never consent to a search of your computer. Require a warrant before releasing computers and phones to the police.
Cyber crimes detection and prosecutions have become more common with the computer and internet age. As the problem of internet child related sexual offenses became more prevalent, the task force to prevent and detect internet crimes against children was created in 2008. The task force now includes more than 2,000 local, state and federal law enforcement agencies. Since the inception of the task force, more 30,000 arrests have been made. If a person is arrested for any of the above offenses, remember to never provide a statement to the police. A confession or admission is often the strongest evidence that can be obtained by investigators and will certainly be used by prosecutors to put someone in jail.
Miami-Dade Men Arrested, Meet Detective as Underage Girl for Sex, Miami Herald.com, April 9, 2012.
A former charter school athletic director has been charged with seven additional sex crimes allegedly discovered by local law enforcement authorities. The defendant was previously charged with lewd and lascivious molestation of a twelve year old female victim. During the pendency of the case, a 17 year old female reported that she and the defendant had a unlawful sexual relationship. The defendant now faces 7 more counts of unlawful sexual activity with a minor. The defendant was arrested in Polk County on the new charges and was extradited to Miami-Dade County. The defendant is currently in custody and being held without bail on the second case. The arraignment on the new case is scheduled for January 5 where the defendant and his Miami criminal lawyer will appear in court.
In the case involving the 12 year old, the defendant is charged with two counts of lewd and lascivious battery on a child and one count of lewd and lascivious molestation of a child between the ages of 12 and 16. According to police reports, the defendant used his position as athletic director to coerce the girl to engage in unlawful sexual conduct. The crime of lewd and lascivious battery requires the state to prove that the defendant committed a sexual act with a victim, more specifically, that the defendant's sexual organ penetrated or had union with the sexual organs or the mouth of the victim. Neither the victim's past sexual history or the victim's purported consent is a defense to the sexual offense. Furthermore, the defendant's lack of knowledge of the victim's age, even if misrepresented by the victim, is also not a defense to the crime. The offense itself is a second degree felony punishable up to fifteen years in prison.
In the case involving the 17 year old, the defendant is charged with 7 counts of sexual activity with a minor. To prove the case, the state must show that the victim was 16 or 17 years old; the defendant was 24 years of age or older, and the defendant has sexual activity with the victim as defined above. The charge itself is also a second degree felony punishable up to fifteen years in prison. The defendant's knowledge of victim's age and the victim's prior sexual history are not defenses to the charge. The defendant is currently being held without bond on these charges. The offense itself allows for a bond to be posted. As long as the alleged criminal acts were not committed after the bond was set in the first case, the defendant should be entitled to a bond. If the state or corrections is improperly holding a defendant, an experienced criminal lawyer will demand a bond hearing before the presiding judge.
Although the defendant along with every other defendant charged with a criminal sexual offense is facing serious terms of incarceration, cases involving sex crimes can be effectively defended. As in all cases, the strength of a case will be based on the amount and quality of evidence gathered by law enforcement. Anyone being investigated or arrested for a sexual offense should seek the advice of a qualified lawyer experienced in defending these types of cases. The most damning evidence against a defendant is certainly a inculpatory post-Miranda statement. Anyone involved in a criminal investigation must remember that suspects have the right to remain to remain. The constitutional right should always be invoked at the earliest possible time. A taped or written confession seals a case for the state and allows for the state not to rely so heavily on victim's/witness's credibility. Be aware of your rights.
School Athletic Director in West Kendall is Charged with More Sex Crimes, Miami Herald.com, January 30, 2012.
A former local police officer recently entered into a guilty plea to one charge of child abuse, no great bodily harm. The case stemmed from allegations that the ex-cop would fondle young girls during traffic stops. The defendant was originally charged with two counts of lewd and lascivious battery on a minor, but entered a guilty plea to the reduced charge negotiated by his Miami criminal attorney. According to court records, multiple other victims came forward on the case, but they were only to be used as witnesses. The prosecution intended on bolstering their case by presenting what is typically called Rule 404 evidence. Under the Florida Rules of Evidence, Section 90.404(2)(a), the prosecution can use similar fact evidence of other crimes, wrongs, or acts when relevant to prove a material fact in issue. The fact evidence sought to be used includes proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. However, the evidence may not be used for the sole purpose of establishing the bad character or criminal propensity of the defendant.
Rule of Evidence, Section 404(2)(b), applies specifically to child molestation cases. In a criminal case, involving a child sex offense, the prosecution can admit evidence of the defendant's commission of other crimes of child sexual abuse. If the prosecution intends on seeking to admit Rule 404 type of evidence, they must inform the defense lawyer and the client no fewer than 10 days before the trail commences. The prosecution must provide a written statement to the defense containing the offenses they seek to admit with as much specificity as required in an information or indictment. If a jury is allowed to hear the Rule 404 evidence, they will be specifically instructed as to the limited use of the evidence.
The case against the defendant broke down when one of the victim's alleged in a charged offense admitted that she had made up allegations of sexual abuse in a separate unrelated case. With the victim's credibility in question, the state dropped that count of lewd and lascivious conduct and pled the case out to a lesser charge with probation. According to the state, the case became very weak without that charge, which in turn led to the plea offer. The defendant entered a guilty plea and received a withhold of adjudication and 5 years reporting probation and was also required to surrender his police officer certification papers. The defendant is also required to complete a treatment program for sexual offenders as part of his probation. At the conclusion of his probationary period, the defendant will not be able to seal his record as aggravated child abuse is not a sealable offense under the Florida Statutes.
The question remains whether the defendant will be categorized as a sexual offender. While aggravated child abuse is not an offense that can cause a person to become labeled a sexual offender, the final word will be left up to the Florida Department of Law Enforcement (FDLE). Experienced defense lawyers know that a charge reduction to a non-sexual offense does not mean that a defendant will not be labeled a sexual offender. FDLE reviews arrest affidavits and not necessarily the charges when making that decision. They will consider the facts surrounding the case in making that determination. If a defendant is deemed to be a sexual offender by FDLE, many onerous restrictions will be put in place, including, but not limited to, where a defendant may live, being posted on the internet, and quarterly reporting requirements.
Former Miami-Dade Cop Takes Plea in Fondling Case, Miami Herald.com, December 29, 2011.
A former local elementary school teacher is currently facing child pornography charges in circuit court. Possession of child pornography is normally a third degree felony punishable up to five years in prison. A defendant can be charged with one count of every image in his or her possession. This case is interesting in that the Miami criminal attorney representing the defendant has filed a motion to dismiss the charges. The basis of the motion is that the defendant never downloaded or printed any of the illegal images. Court documents indicate that the defendant is accused of viewing child pornography from a computer located at the University of Miami computer lab.
It is very difficult to charge someone for viewing child pornography on a computer. Even though law enforcement can seize a computer through the use of search warrant and search the hard drive or internet memory for illegal images, prosecutors still have to prove that the defendant had knowledge that the images were present and that the images were actually downloaded by the defendant. Generally, prosecutors need the defendant to provide a statement to the police admitting to the illegal conduct. Anyone investigated for possession of child pornography should seek out assistance from qualified criminal lawyer prior to having contact with law enforcement authorities. If an arrest occurs prior to hiring an attorney remember to invoke your right to remain silent as it is in your best interests.
The authorities in this case are not relying on a statement provided by the teacher, but rather the assistance provided by one of the lab technicians. After drawing suspicion, the lab technician used a computer program to view what the defendant was viewing. She observed the defendant conducting searches for underage topless girls and other lewd photographs. The technician notified her supervisor who in turn contacted the Coral Gables Police Department. The detectives then set up surveillance cameras which captured the defendant looking at the child porn websites. Detectives also followed the defendant to shopping centers and supermarkets on Key Biscayne where is was feared that he was looking for underage girls. That part of the investigation turned up nothing and he was never charged for anything other than the child pornography at the computer lab.
The defense lawyer representing the defendant has filed a motion to dismiss based on the rationale that merely viewing images at the time when the defendant was arrested was not a crime because he never printed or downloaded any images. The argument is based on the fact that the Florida legislature only this year made it illegal to merely view child porn. The prosecution claims that the behavior was in fact criminal because the defendant had control over the images. The motion is set to be heard later in the month. The defendant is currently charged with 8 counts of possession of child pornography. If the defendant's attorney is successful all the charges will be dismissed. If unsuccessful, the defendant is facing up to forty years and may have to consider a plea bargain to avoid any jail time.
Miami-Dade Man Challenges Child Porn Arrest on Passage of New Law, Miami Herald.com, July 31, 2011.
Video surveillance tapes have been used to both convict and absolve defendants charged with crimes. Video has been used to convict defendants charged with crimes such as armed robbery and home invasion type of offenses. In other cases, video recordings have been used to exonerate defendants charged similar serious offenses. In cases where surveillance exists, it is imperative that Miami criminal attorneys representing clients file motions to preserve the evidence immediately. Surveillance video is usually deleted or copied over fairly quickly. Once the video has been erased it is useless and cannot be used to exonerate a client. A recent case demonstrating the importance of video surveillance is the sexual battery case that arose in the Atlantis resort involving college students. According to sources, the video depicts the women victims as willing participants to the events leading up to the alleged rape.
While the video does not depict what occurred in the hotel room, the video does depict the alleged victims having drinks with and gambling with the defendants. The video also depicts a series of flirtations and caresses coupled with physical activity as the women kissed the men while gambling in the casino. While not dispositive of what occurred in the hotel room, it certainly raises significant issues as to whether the crime of sexual battery was committed. Video footage is a powerful resource when properly used by a skilled criminal defense attorney. It can be used to convince a prosecutor to drop the charges. If that does not work, the footage itself will be a powerful tool in convincing a jury to return a not guilty verdict at trial.
While the video is important evidence, other physical evidence must be evaluated to defend a client charged with sexual battery. Rape treatment kits are often used is rape investigations. The sexual organs of victims are examined and evaluated to determine if force was used during sexual intercourse. Nurses attempt to collect semen samples and check the fingernails of victims for skin samples belonging to the defendant. A victim's arms, wrists and neck are checked for bruising to determine if force was used during the alleged offense. Blood samples are also taken of the victim to determine blood alcohol content, the presence of drugs in the system, such as marijuana and cocaine, and or course date rape drugs. All of these pieces of evidence or lack of evidence are used by the prosecution and the defense to build their respective cases.
Sometimes, the most important item of evidence in a sexual battery cases, is the initial statement provided by the victim. The initial statement locks a victim into her version of events. With that version of the events in hand, a qualified criminal lawyer can punch holes in the prosecutions's case. For example, in the case out of the Bahamas, both victims claimed that they were feeling dizzy and losing control over their bodies. These statements would infer that the victims were slipped date rape drugs, like Rohypnols or Roofies. The blood tests revealed no evidence of date rape drugs which refutes the stories of the purported victims. In many cases, the versions of stories provided by victims in date rape cases can be refuted by physical evidence, such a video surveillance, rape kits and blood tests. As charges stemming from sexual offenses have life altering affects, no stone can go unturned in defending these types of cases.
Surveillance Video Could be Key in Garrett Wittels Rape Case, Miami Herald.com, May 8, 2011.
A Florida International University baseball star and two friends were arrested and charged with rape, more commonly known in the State of Florida as sexual battery. The three men were staying at the Atlantis resort in the Bahamas when they allegedly met up with two 17 year-old women. The group of five people returned to a hotel room within the resort. The girls say they are the victims of rape, while the men have provided statements that they all engaged in consensual sex. The three men were arrested by Bahamian authorities and released upon posting a $10,000 bond. Evidence has already been collected including video surveillance and rape kits. As in the majority of sexual battery cases, the entire case will revolve upon the issue of consent. The issue of consent is no different whether the case is defended in the Bahamas or by a Miami criminal attorney in the State of Florida.
The age of the victims in the case is irrelevant under Bahamian law as the age of consent is sixteen. The laws of the State of Florida are slightly different as the age of consent is 18. However, for the charge of statutory rape ("Unlawful Sexual Acts with Minors") to apply, a defendant must be 24 years of age or older. As the alleged victims were over the age of 16 the defendants cannot be charged with statutory rape. Statutory rape is much easier to prove than sexual battery as consent is not an issue when dealing the former. Consent under Florida law is defined as intelligent, knowing and voluntary consent and does not include coerced submission. Consent does not mean the failure of the alleged victim to offer physical resistance to the offender.
Based on the information proved by the media, it appears as if the defendants have a very defensable case. The victims were caught on tape drinking at bar within the resort. Both girls were observed kissing at the bar. The video shows that the women gestured the men over to where they were sitting. The victims voluntarily went with the defendants to the hotel room. Blood taken from the victims revealed that they had alcohol in their system, but the actual blood alcohol level (BAC) has not been released. Most importantly the blood results did not show any form of date rape drug in either of the victim's systems. It is not clear whether or not a rape treatment exam was performed on the victims. If neither of the victims suffered any injuries inconsistent with consensual sex, that will be big plus for the defense. It is not clear whether the alleged victims resisted the defendants or were physically unable to resist due to alcohol consumption.
In sum, the case comes down testimonial, not physical evidence. The three young men involved will say that the alleged victims consented to the sex, while the victims will say that they are the victims of a sexual offense. All of the other facts mentioned earlier will certainly support the defendant's contention that the victim's regretted their actions after the fact. When dealing with testimonial evidence, the credibility of the defendants and victims in the case is crucial. The consistencies or lack of consistencies in the initial statements of the participants will also be critical. The backgrounds of the parties is also important, but due to the age of those involved, it probably will not have much bearing on the case. A preliminary hearing is set for April 18th and more information will be made public is the case develops.
No Date-Rape Drugs Found in Baseball Star Wittels Investigation, The Miami Herald.com, December 28, 2010.
A former chef entered a guilty plea into numerous sexual battery and attempted sexual battery charges. The defendant was accused of committing multiple rapes on Miami Beach between 2006 and 2008. The Miami criminal defense lawyer representing Arturo Ortiz-Soto originally negotiated a 30 year sentence between the defendant and the Miami-Dade County State Attorney's Office. After hearing the plea agreement, the circuit court judge presiding over the case refused to accept the deal as being to lenient. The judge offered 40 years to resolve the defendant's case which was immediately accepted. While it is not typical for a judge to reject a plea offer, judges always have to ratify any plea deals between the state and the defense. The nature of the charges involved with this case plus the media attention probably led to judge to reject the original agreement.
The information(s) accused the defendant of committing several violent rapes on South Beach. In state court, the information is the charging document which sets forth the number of and the types of charges a particular defendant is facing. The defendant at the time he allegedly committed the rapes worked as a sushi chef on Miami Beach. The first information accused the defendant of committing a sexual battery against a women in an alley on the beach. A second information alleged another sexual battery committed in an alley. The third and fourth information(s) alleged attempted sexual batteries which also occurred in alleyways on Miami Beach.
The last attack allegedly committed by the defendant was caught on video tape. After committing the last attack, Miami Beach police officers apprehended the defendant wearing a blood soaked shirt. After being arrested, the defendant purportedly admitted to all the crimes for which he was charged. DNA evidence came back positive on two of the cases. With the strength of the evidence, the defendant made the logical choice of entering a plea because he was facing up to 140 years in prison for his sex crimes. If the defendant had chosen not to accept a guilty plea, the prosecution would have had the opportunity to try him on 4 separate occasions. The judge would not have granted a motion to consolidate the cases as they all occurred on separate dates and at separate locations.
Another problem the defendant was facing if he went to trial would have been that the prosecution would have attempted to introduce the facts of all the cases to support a conviction in one of the sexual battery cases. Rule 404(a) prevents the prosecution from admitting evidence of other crimes, wrongs, or acts to prove the bad character of a defendant or propensity to commit the crime. However, the prosecution can use other evidence to prove motive, opportunity, intent preparation, plan knowledge, identity or absence of mistake. Based on the fact that the offenses were committed in a similar fashion, all the cases would have been heard to support a conviction in the primary case. Prior to other evidence of wrongdoing being admitted at trial, the court will hold a pre-trial hearing to determine if the evidence being sought to be admitted is proper.
Sushi-Chef Rapist Sentenced to 40 Years in Prison, The Miami Herald.com, November 2, 2010.
The Hialeah Police Department arrested a middle aged man for committing a sex crime against a minor. The police report indicated that the assault occurred a public park and was committed against a 14 year-old boy. The defendant appeared with his Miami criminal lawyer from the public defender's office at his initial bond hearing. The judge presiding over the bond hearing set bail at $10,000.00. The bail amount is the standard bond for a second degree felony. The prosecution did not seek to have the bond increased as the defendant has no prior record for having committed a sexual offense.
The defendant was arrested for the charge of lewd and lascivious molestation and lewd and lascivious conduct which are second degree felony punishable up to 15 years in prison. Under the State of Florida Sentencing Guidelines, the charges are both level 7 offenses which carry a 21 month sentence at the bottom of the guidelines. The defendant is accused of forcing himself on the boy by kissing him and forcing him to fondle him. There is no indication that there were any other eyewitnesses to the incident. The boy and his father flagged down a Miami-Dade school police officer who eventually stopped and arrested the suspect.
To prove the charge of lewd and lascivious molestation, the prosecution has to prove that the defendant intentionally touched the victim in a lewd and lascivious manner, the breast, genitals, etc., or the clothes covering them. The victim also has to be under the age of sixteen for the offense to have been committed. Similarly, the offense of lewd and lascivious conduct requires to the prosecution to prove beyond a reasonable doubt that the defendant committed an intentional touching in a lewd or lascivious manner and the victim is under the age of 16.
The resolution of this case will be determined by two factors. The first will depend on the strength of the victim's testimony. Second, the parents of the victim will have to decide whether to have their child testify or work out a plea to avoid additional emotional harm to the child. Even if the defense attorney representing the defendant can obtain a probationary plea, the defendant will be deemed a sexual offender by the Florida Department of Law Enforcement. Being designated a sexual offender is problematic for a variety of reasons. The consequences that will result include restrictions on where a sexual offender can live and the quarterly reporting requirements. If the case is weak enough the attorney should attempt to charge bargain the case in an effort to prevent the defendant from being categorized as a sexual offender.
Man Accused of Molesting Boy at Hialeah Park, CBS4.com, October 21, 2010.
A Broward county man who spent time as a Boy Scout Volunteer was arrested by the Broward County Sheriff's Office for possession of child pornography. Possession of child pornography is not a crime commonly charged in Broward or Miami-Dade County, but when arrests are made, the cases garner a lot of media attention. Child pornography is defined under the Florida statutes as any image depicting a minor engaged in sexual conduct. Anyone who intentionally possesses, sells, lends, gives away, transmits or shows images of any kind depicting minors engaged in sexual acts can and will be charged with a third degree felony by the state attorney's office. Keep in mind that each depiction will carry a separate charge. For example, a person possessing five images can be charged with five separate counts and is looking at 25 years as opposed to 5 years in state prison. If you are being investigated for or have been arrested under the child pornography statute, immediately seek legal advice from a qualified Miami criminal lawyer experienced in defending these types of cases.
Gary Morano, was arrested on 75 counts of possession of child pornography. He was booked into the Broward County Jail and appeared at bond hearing. The standard bond for possession of child pornography in Broward County is $10,000 for each count and subsequently the bond was set at $750,000. In order to secure his release, Morano can retain a criminal lawyer to request a bond reduction, pay the amount set forth by the court, or hire a bondsman to post the bail. A bondsman will require a 10% premium or $75,000 to secure his release. Do to the high amount of the bond, the bondsman may also require additional collateral in the event the defendant decides to flee the jurisdiction.
The Broward Sheriff's Office working in conjunction with the South Florida Internet Crimes Against Children Task Force was able trace pornographic images back to a rental property owned by the defendant and his wife. The Task Force investigates sex offenses committed against children. Pursuant to a search warrant, detectives seized a computer belonging to the defendant which had images stored on the hard drive. The images depicted sexual acts of children between the ages of 6 and 10. According to the police report, the defendant was advised of his Miranda rights which he waived. The defendant told the police that he was the only one who had access to the computer and that he was aware that child pornography was stored on his computer.
In all cases where a person has been arrested, they have a constitutional right to refuse to speak to police officers or detectives and also have the right to counsel. In so many cases, the evidence collected by law enforcement is not enough to prosecute a case. In this case, the defendant would have had available many defenses to the charges. The police had no way to prove that the defendant downloaded the images, new they were present on the computer or even if the computer belonged to him. In this case, the defendant's statements divested him of many defenses and made the case harder for whichever criminal defense attorney represents him. As in so many previous blogs, always remember, never speak to police without speaking to a criminal lawyer first.
Boy Scout Volunteer Arrested on Child Porn Charges, The Sun Sentinal.com, July 20, 2010.
The Jimmy Ryce Act was passed in 1998 as a result of the kidnapping, sexual battery and murder that was committed in 1995. In 1995, a handyman named Juan Carlos Chavez approached a 9 year-old boy walking home from school in Miami-Dade County. The defendant pulled a gun on the child, forced him into his truck at gun point and then raped and murdered the child. Chavez was convicted and sentenced to the death penalty in 1998. As a result of this heinous crimes, the Florida legislature created the act allowing the civil commitment of defendants charged and convicted of sexual offenses. After a defendant serves out the sentence for the criminal act, he or she can be confined at a locked facility where they receive treatment until they are released. Sexual offenders will only be released after they are no longer deemed a threat to society. The civil commitment laws only apply to those who enter pleas or are convicted by a jury of sexually violent crimes.
The Department of Children and Family Services ("DCF") is in charge of running the Florida's Sexually Violent Predator Program. When a defendant is close to completing a prison sentence, DCF will review the case and determine if civil confinement is appropriate. Prior to making that determination, the defendant convicted of a violent sex offense will meet with mental health professionals. Once DCF determines that civil confinement is desired, a defendant must be found to be a sexually violent predator likely to re-offend either by way of a civil trial or by a voluntary entry into the program. Defendants are entitled to counsel in Jimmy Ryce actions. In fact, the public defender's office has a team of Miami criminal attorneys representing individuals been examined for civil commitment.
Presently, there are approximately 673 detainees in the Sexually Violent Predator Program. The number of defendants confined in the Florida Civil Commitment Center in Arcadia, Florida continues to grow year after year. The DCF has contracted GEO Care, Inc. to maintain and operate the center. The cost to run the center is extremely high, with a budget in excess of $25 million per year. The cost to house a single predator is about $36,000 per year which is more than double to care for an a regular state prisoner. Different sides argue that the program is too expensive while the other side says that the protection of the community has no price tag. From the inception of the center, no prisoners were released until 2005. Since that time, 31 committed defendant have completed the treatment and have been released back into the community.
All defendants charged with sex offenses or sexually motivated offenses should try to retain criminal law firms that have experience in defending these types of crimes. While a plea at first blush may seem like the way to resolve a case, especially if the amount of incarceration is limited, however, a defendant may not be released if he or she enters a plea into an offense that subjects them to civil confinement. That being the case, not only is the sentence that a person receives important, but more importantly is the offense for which that person enters a plea.
Grisly Attack on 9 Year-Old Sparked Florida's Effort to Put Away Sex Predators, The Florida Times-Union Jacksonville.com, June 27, 2010
The Florida legislature passed a bill which prohibits sex offenders and predators from coming within 300 feet of where children congregate. The bills specifically declares off limits locations such as schools, parks and playgrounds. The 300 foot ban imposed against those convicted of crimes such as sexual battery and lewd and lascivious conduct is in effect 24 hours a day. If a person previously convicted of a sex offense and characterized by the Florida Department of Law Enforcement (FDLE) as a sexual offender or sexual predator is caught within 300 feet of a school, park or playground, they will charged with a first degree misdemeanor which is punishable up to a year in jail. This another example why a defendant must retain a highly qualified Miami criminal lawyer to defend all sexually motivated crime. While a plea to probation may be an easy way out of a case and certainly avoids incarceration, the life long effects of entering such a plea will eventually become apparent.
Another law passed by the State of Florida also impacts individuals deemed to be sexual offenders or sexual predators. The current state of the law in Florida does not permit convicted sex offenders or predators to live within a 1,000 feet of schools, playgrounds and parks. If the state law was not onerous enough, some individual South Florida counties and municipalities have passed there own rules increasing the living restriction to 2,500 feet. Legislators attempted to amend the most recently passed bill to reflect 2,500 feet, but it was withdrawn at the last minute. The problem of the increased living restrictions became apparent with the recent media attention to the shanty town created by sexual offenders and predators living under the Julia Tuttle Causeway. Other jurisdictions have had similar problems with offenders not being able to live anywhere legal. These individual move into the streets where state authorities can not track them as required by the law.
If someone is being investigated or has been arrested for being involved in a sex offense, it is imperative not to speak with law enforcement investigators. On many occasions, individuals involved in these types of investigations believe their version of events provided to law enforcement will somehow prevent an arrest and prosecution. While a statement maybe on the whole exculpatory, minor details may be gleaned by detectives to make their case stronger. The constitution of the United States provides that everyone has the right to refuse to speak to law enforcement and also has the right to request not speaking to authorities without having a criminal attorney by their side. Take advantage of your rights. These laws apply to all types of cases from DUI's to first degree murder.
There are many offenses that if pled to will cause a person to be labeled a sexual offender or sexual predator. Some of the offenses are sexual battery, indecent exposure, lewd and lascivious behavior and possession or distribution of internet child pornography. A plea to any of these charges will most likely result in a person being labeled as a sexual offender or sexual predator. Defendants should also be aware that even if charges are negotiated as a part of plea bargaining, FDLE can still label someone as a sexual offender or predator even if they plead to a non-sexually motivated offense. The best way to avoid any of these consequences is to hire a highly qualified criminal defense firm to beat the case outright.
Florida Senate Votes to Ban Sex Offenders from Loitering Near Schools, Park, Sun Sentinal.com, April 30, 2010.
The former principal at Northwestern High School is standing trial for his alleged involvement in covering up a sexual crime that occurred at his school. The allegations charge that Dwight Bernard protected a football player that was accused of statutory rape. The star football player was accused of having sex in a school bathroom with an underage girl. In 2007 a grand jury indicted Bernard on two counts of official misconduct. While the prosecutor accused the defendant of covering up the crime, his criminal defense lawyer claimed that her client committed no crime.
The setting for the trial began in 2006, when the high school football player and a 14 year old female student had sex on a bathroom floor. The mother of the young girl found out about the incident and reported it during a parent-teacher conference which occurred the following month. The following day, the mother met with the principal and other school administrators to discuss the allegation. According to the indictment, Bernard failed to report the sex crime to the school police and in fact failed to report the episode to anyone. A school counselor believed Bernard would report the offense to the police once she informed him of his obligation to do so. Bernard is also accused of falsifying reports about his role in the investigation.
Police reports indicate that the incident continued to go unreported even after other students were caught have sex with the same underage girl. It was not until the victim's mother told another school employee that an investigation into the allegations regarding the football player were initiated, which eventually led to an arrest for lewd and lascivious battery on a child. The charges were filed in juvenile court. The high school student accepted a pre-trial intervention program in lieu of standing trial. The pre-trial intervention program is available for first time offenders. If the defendant completes all the conditions set forth by the prosecution, the charges will be dismissed after being enrolled in the program for approximately six months.
Individuals charged with sexual offenses must retain criminal defense law firms with significant experience in the defending these types of cases. The majority of sex offenses carry severe punishments that can land a defendant in prison. Not only is a long prison sentence possible, but anyone convicted of a sexually motivated offense will be listed with the Florida Department of Law Enforcement as a sexual offender, or even worse a sexual predator. Once an individual receives this type of classification, there are very serious ramifications. The current laws in Miami-Dade County and around the State of Florida puts restrictions on where sex offenders can live. While there has been recent changes to the local laws, a sex offender title will place limitations on where a person can reside. Additionally, sex offenders' photos are placed on the internet which is embarrassing situation. Also, sex offenders are required to register four times a year so law enforcement can track their whereabouts. While a talented criminal lawyer can avoid jail and prison sentences for sexual offenses, it is important that charge bargaining occur so that individuals who do enter pleas avoid the connotation of being a sexual offender.
Trial Over Sex Scandal Begins For Former Northwestern High Principal, The Miami Herald, April 23, 2010.
Miami-Dade County commissioners voted to amend local sex offender laws in an effort to alleviate the problems that are leaving sex offenders with no place to live with the exception of under bridges. The new ordinance will supercede portions of the old ordinance by loosening some portions of the local laws. Commissioners unanimously voted to create one standard across the entire county rather than the previously existing multiple laws handed down separately from various municipalities.
Although the standards have been loosened, Miami-Dade County made the changes maintaining a balance between the rights those convicted of sex offense such as sexual battery and lewd and lascivious conduct, and children who need protection from these offenders. Despite the changes, Miami criminal lawyers must make their clients aware of which sex offenses carry these restrictive bans before allowing their clients to enter into plea agreements with the state attorney's office. It is imperative that a Miami sex offense criminal lawyer not only plea bargain on behalf of their clients, but should also make charge bargaining a priority in an effort to avoid these restrictions.
The new Miami-Dade County ordinance repeals at least 24 laws that had previously enacted by separate municipalities. The ordinance create more workable exclusion zones for those convicted of certain sexual offenses such as sexual assault, sexual battery, lewd and lascivious conduct, statutory rape and child sex abuse. The new law maintains the 2,500-foot rule prohibiting certain sex offenders from living that close to schools. However, a new 1,000-foot rule now exists prohibiting certain sex offenders from living that distance from where children congregate. Civil libertarians applaud the new rule. However they still hold the opinion that any restrictions force many of the sexual offenders underground, thus making it more difficult for law enforcement to monitor them.
Others disagree with the change in the law. Miami Beach County Attorney, Jose Smith, intends to challenge the new law and was quoted as saying, "I haven't been satisfied that the county has the authority to do this and that the new law waters down their more strict city-wide policies." Miami Beach along with several other municipalities will challenge the new ordinance. Many local governments had previously imposed the 2,500 foot ban as a result of the rape and murder of nine-year old Jessica Lunsford in 2005. Others predict every municipality will adopt Miami-Dade Counties policies by the end of the year. The American Civil Liberties Union (ACLU) has become involved in the controversy and previously filed suit against Miami-Dade over its 2,500 foot rule. The organization has gone on record that the new ordinance is a step in the right direction, but argue for more changes in the law.
Miami-Dade OK's New Sex Offender Law, The Miami Herald, January 21, 2010.